Key Elements of a Hedge Fund Manager’s Insider Trading Policies and Procedures

While the insider trading allegations against Raj Rajaratnam of Galleon Group and others remain to be proved or disproved, the case has already confirmed the fundamental importance to hedge fund managers of having, enforcing and training personnel with respect to comprehensive and strategy-specific insider trading policies and procedures.  See “Billionaire Founder of Hedge Fund Manager Galleon Group, Raj Rajaratnam, Charged in Alleged Insider Trading Conspiracy,” Hedge Fund Law Report, Vol. 2, No. 42 (Oct. 21, 2009).  The SEC requires registered investment advisers to have written compliance policies and procedures and written codes of ethics – either may contain the adviser’s written policies and procedures regarding insider trading (or the code of ethics may be part of the compliance manual).  However, the prohibition against insider trading – a broad legal framework based in caselaw, regulatory pronouncements and statutory provisions – applies to all investment advisers and all hedge fund managers, not just registered managers.  Therefore, most hedge fund managers have written insider trading policies and procedures, those that do not should and even those that do should revisit them.  The importance and urgency of focusing or refocusing on written insider trading policies and procedures is based on at least two trends.  First, the allegations against Galleon are part of a renewed enforcement effort on the part of the SEC and DOJ against hedge funds specifically and insider trading generally.  See “For Hedge Funds and Their Managers, the SEC’s New Enforcement Initiatives May Increase the Likelihood, Speed and Vigor of Inspections and Examinations,” Hedge Fund Law Report, Vol. 2, No. 33 (Aug. 19, 2009).  Second, most hedge fund managers likely will be required to register with the SEC within a relatively short time.  On Tuesday, October 27, 2009, the Private Fund Investment Advisers Registration Act, which generally would require registration by most hedge fund managers, passed the House Financial Services Committee.  See “U.S. House of Representatives Holds Hearing on Hedge Fund Adviser Registration,” Hedge Fund Law Report, Vol. 2, No. 42 (Oct. 21, 2009); “Hedge Fund Association Hosts Capitol Hill Symposium Focused on Hedge Fund Adviser Registration and Hedge Fund Industry Regulation,” Hedge Fund Law Report, Vol. 2, No. 42 (Oct. 21, 2009).  In light of the fundamental importance to hedge fund managers of having apt and thorough written insider trading policies and procedures, and making such policies part of the firm’s “culture of compliance,” this article examines the nuts and bolts of what should be in such policies and procedures and why.  In particular, we examine the statutory, regulatory and practical requirements for having an insider trading policy; certain key definitions typically included in an insider trading policy, including the definitions of “insider,” “nonpublic information,” “materiality” and “security”; remedies and penalties for violations of insider trading laws and insider trading policies; guidelines for avoiding violations, including watch lists and ethical walls; related categories of market manipulation; personal trading policies and procedures; the critical importance of training; and the utility of filtering information through the Chief Compliance Officer.

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